Wednesday was World Public Domain Day, a.k.a. New Year’s Day. On January 1, the copyrights of numerous books and other works of art expire and the move into the public domain. Not only does that permit publishers to print them (or post them on-line) without paying the creator or worrying about being sued but other writers and artists can freely use portions of the now free work in their own creative endeavours. Want to write a sequel to Oliver Twist or Frankenstein? Go right ahead. It’s Liberty Hall — you can spit on the mat and call the cat a bastard. Try to expand on that last quote (from A. Bertram Chandler) with a John Grimes novella of your own and you could wind up in court. Though Chandler has been dead nearly 30 years, his work is still under copyright and his estate collects the royalties.
Generally speaking, most of the (western) world grants copyright to a creator for their lifetime and a certain number of years after their death. Copyright is not itself transferrable — I can’t give you the copyright to one my novels but I can license you to publish it and I can assign the royalties from that publication to anyone I like. Irving Berlin, for example, assigned the royalties for “God Bless America” to the Boy Scouts who earned millions from it. Ernest Hemingway assigned the royalties to “The Sun Also Rises” to his wife, Hadley, after their divorce.
Some artists — foolish or uninformed — have made irrevocable license and royalty assignments to unscrupulous publishers or agents, essentially transferring all legal rights and de facto copyright. John Fogerty famously lost all the rights to the songs he wrote for Creedence Clearwater Revival. Currently many publishing contracts provide a license to the publisher for the length of the copyright though good agents will always attempt and usually succeed in having a reasonable reversion clause inserted so writers can recover their full rights if the publisher fails to keep a book meaningfully in print.
This all seems pretty straightforward. The state — through copyright legislation and the courts — ensures that creators are in control of their creations and are compensated for their use. Intellectual property is recognized and treated, in part, as an inheritable good. People violate copyright all the time but creators or their estates have legal remedies. Or do they?
Once you look more closely, it doesn’t seem straightforward at all.
First of all, not every nation treats copyright in the same manner. In Canada, for example, copyright expires fifty years after the death of a writer. In Canada, the complete works of Hemingway who died in 1961 are in the public domain. This is true of any number of countries which use the same rule. However, in other countries, different rules apply. The standard in the UK and much of Europe is 70 years after death. The same is true in the USA for books published after 1978 though earlier works are covered for 95 years from original publication. The aforementioned “The Sun Also Rises” will become public domain in the USA in 2021. The USA also allows for renewal of copyright under certain circumstances — most other countries do not. I don’t know if any Canadian publisher has exercised the freedom to print non-copyright versions of old Hem — the proximity of a litigious neighbour will often curtail your freedom.
Currently the Marshall Islands are the only country that allows no copyright whatsoever. My advice: don’t sell your work to a Marshall Islands’ publisher. Of course, universal copyright is a relatively new thing. For decades, the Soviet Union did not recognize copyright of any kind. Not surprising for a country that operated in theory at least on the principle that “Property is theft.” Tennessee Williams — whose works were amazingly popular with the Soviets — estimated that the USSR owed him millions in performance royalties. He never collected but still left an estate of roughly $11M which grew after his death.
On the other hand, Mexico recently extended copyright to a whopping 100 years after death — ensuring that successful writers will be able to support their children, grand-children and great-grand children in luxury long after they themselves are dust. Some people fear that this is the tip of the iceberg.
Of course, it is not the dead writers who are pushing for these extensions. Hemingway isn’t going to write any more novels or Berlin anymore songs no matter how long copyright is provided. It is the aforementioned children and grand-children, not to mention corporate entities like Disney, who are keen to continue milking the creative cow of their literal or metaphorical ancestors.
Those who argue for shorter copyrights and more rapid transition to public domain claim that this will enhance creativity. Art is after all a conversation with itself and copyright limits the ability to engage past artists completely. More art will be produced — and therefore more wealth created — if present day writers can incorporate previous works into their own creative efforts.
I agree that art is a conversation — ‘science fiction is our conversation with the future’ is after all the slogan of Bundoran Press — but you can easily engage in that conversation without violating copyright. The principles of fair usage and the protection of satire and parody provided by most legislation is quite robust and clever writers can evoke their predecessors without stealing their work. The real issue with shorter copyright has to do with the possibility of making money from a property that is still valuable after all these years.
Who, for example, actually uses the work of Bulwer Lytton to make money (Okay, there is the annual Bulwer Lytton bad writing contest but it’s hardly a goldmine)? Yet, he was one of the most successful writers of his time with dozens of novels and plays to his credit. No staying power unfortunately. Arthur Conan Doyle on the other hand — or more specifically, his most famous creation, Sherlock Holmes — is still a popular commodity. I should know, I’ve sold two Sherlockian stories myself.
Another example of the value of old fiction is Peter Pan. J.M. Barrie assigned all rights to the work to the Great Ormond Street Hospital in 1929. Faced with the expiration of copyright outside of England (the British government had granted a perpetual right to royalties in 1987) in 2007, the trustees commissioned a sequel in an effort to maintain some income flow. Court cases in the USA — where the 95-year rule applies — continue to argue over the actual date of copyright expiration: 2006 based on the 1911 book or 2023 based on the 1928 play.
Money is the root of all copyright.
Does letting people play in other artists’ worlds constitute real creativity? It certainly is fun and there is money to be made. But, really, is a modern day Sherlock Holmes novel — no matter the skill of the writers involved — any more than derivative? Is it any more than fan fiction? And, is it, as those who continue to hold copyright in one country but have lost it in others argue, any more than theft?
Try writing fan fiction without the express or implied consent of a writer today, you may find yourself facing an expensive and unpleasant lawsuit. Publish an original work without permission of a living author and you may get into hot water as well — unless of course you’re Google.
But what about after the original creator is dead? Why should his or her estate continue to benefit exclusively from the use of popular characters or settings? Why indeed? Certainly, with the exception of the occasional posthumous work, the original creator is done with it. If you can argue that 100 or 70 years is too long, you can argue equally well that 50 or 25 or 1 year is too long. Dead is dead. In fact, some would argue that copyright itself is wrong (as is patenting), that ideas want to be free. Indeed — free in the sense of unbounded but not necessarily in the sense of without price. (C. J. Cherryh put it better on Facebook the other day but I couldn’t find the quote when I went looking for it.)
There are certainly strong proponents of not protecting copyright — especially in the digital environment we currently live in. Some simply see it as futile; others see it as a way to stimulate income in other ways (give your work away; some people will find a way to pay for it); others, I guess, think that intellectual property isn’t the same as ‘real’ property. But even pirates occasionally feel guilty: I’ve heard several accounts from writers who got Paypal contributions from people who pirated their work — thus putting them in the awkward position of cheating their publishers and agents out of their share.
And there is the rub. The real question is: are products of the imagination property in the same manner as things like houses? Generally countries that limit copyright to xx years after the death of the creator do not expel grandchildren from houses their grandparents built. That house and the property it sits on can be passed from generation to generation forever. Even countries that don’t protect property rights in their constitution (Canada doesn’t) have some powerful legal precedents that provide similar outcomes. But if intellectual property is ‘real’ property (as in ‘real estate’), then why is there any limit to it at all? And if it isn’t, how can even the creator control it in life let alone after death?
For myself, I’ve often felt that inheritance, especially excessive inheritance, is a bad thing. It increases the greed of the current generation and makes inheritors into dependent parasites. Don’t take my word for it: Warren Buffett says much the same thing. Personally, I’d be happy to reduce income taxes to zero while having a 100% death tax. But I also believe in guaranteed annual incomes for all. That’s me: another socialist small businessman.
But those things aren’t going to happen anytime soon and in the meantime, artists and other creators have to eat and put a roof over their children’s heads. Copyright serves that function — but for the most part I think it should expire sooner rather than later. This does not mean that intellectual property is not real property; the law has always recognized distinctions between different classes of property. This is just another one. Recognizing that intellectual property should fairly compensate creators while not stifling creativity is the stance of a pragmatist not, I hope, a hypocrite.
But 100 years? That’s crazy.
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